Massachusetts Criminal Lawyer Blog

Published on: June 26, 2014

Framingham Man Allegedly Ran Over Friend With Boat

According to an article in the MetroWest Daily News, a Framingham man was recently arraigned on a charge of homicide by negligent operation of a boat. The charges stem from an incident last summer when the defendant and his friends, including the alleged victim, were boating on Lake Cochituate. According to the article, the defendant initially told the police that the alleged victim was wakeboarding, that he slipped while attempting to get back into the boat, and that the defendant heard the engine hit something and saw the alleged victim floating face down. The defendant also made a written statement, however. The written statement differed from his initial account, stating that the alleged victim had grabbed the rope to continue wake boarding when he somehow went under and then came back up, hurt and unconscious.

Another witness that was also on the boat gave a third version of events. He told police that the alleged victim was on the wake board when the boat suddenly accelerated and went too close to the alleged victim. The boat hit the alleged victim and he went under. After two to three seconds, the alleged victim floated to the surface. The witness told the defendant that the alleged victim had been hit and asked if he was going to help him. The witness stated that the defendant then jumped into the water and attempted to drag the alleged victim into the boat. Again, however, the boat accelerated quickly and both the defendant and the alleged victim fell back into the water. The defendant succeeded in getting the alleged victim back into the boat after a second attempt and the three men returned to the landing dock. The alleged victim was taken to Beth Israel Deaconess Medical Center where he ultimately died. The state medical examiner ruled that he suffered a fractured skull with brain damage, as well as lacerations on his face, arms and hands from the propeller.

For the Commonwealth to prove that the defendant is guilty of homicide by negligent operation of a boat under G. L. c. 265, § 13, it would have to establish the following beyond a reasonable doubt: (1) that the defendant caused the alleged victim’s death; (2) that the defendant intended the conduct that caused the alleged victim’s death; and (3) that the defendant’s conduct was negligent. Negligent conduct is conduct that a reasonable person knows, or should know, endangers human life. Continue reading →

Published on: June 26, 2014

Concord Man Arrested for Possession with Intent to Distribute Pot and LSD

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Concord man was found with LSD and marijuana in his possession while he was traveling in Ashland. An officer stopped the defendant’s car in Ashland for speeding. After the officer pulled the defendant over, he approached his car and reportedly smelled burnt marijuana in the car and an odor of alcohol on the defendant. The officer then questioned the defendant and the defendant admitted that he had had a few beers and that he had just smoked marijuana.

The officer then ordered the defendant out of the car and searched him for weapons. During the pat frisk, the officer felt large bulges in the defendant’s pockets. The defendant told the officer that the bulges were money, but refused to explain why he had such a large quantity of cash. The officer then asked the defendant if he had any drugs in the car, but the defendant did not respond. The officer told the defendant that he had a K9 dog in his cruiser that was trained to detect drugs. After that statement, the defendant admitted that he had some marijuana in the trunk of the car, as well as LSD. The officer then searched the car and found three bags of marijuana, totaling slightly more than one ounce, as well as about 10 hits of LSD, and what appeared to be a drug transaction ledger. The officer also found several envelopes of cash and seized a total of $11,639. After these items were found, the defendant ultimately admitted to selling marijuana. As a result, the defendant was arrested and charged with possession with intent to distribute class B and D substances.

Fortunately for the defendant, he appears to have a strong argument that the officer did not have the right to search him in the first place. He can therefore argue that the evidence that the officer found as a result of the search should not be admitted against him. Specifically, under the Fourth Amendment to the United States Constitution and Article Fourteen of the Massachusetts Declaration of Rights, the police are not allowed to search people whenever they feel like it – there must be some legal basis for the search to be valid. If the police conduct a search without a sufficient legal basis, any evidence they find is not admissible against a defendant at trial, and the defendant can file a motion to suppress to have the evidence excluded.

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Published on: June 14, 2014

Massachusetts Parole Board Votes to Release Man Sentenced to Life Without Parole as A Juvenile

By Daniel Cappetta

Twenty years ago, a young man was sentenced to life in prison without the possibility of parole for a crime – felony murder – that was committed when he was seventeen years old. At the time of the crime, the defendant and a friend got into a car with three other men. The five drove around Brockton before the defendant’s friend told the driver of the car to stop at a house so that he and the defendant could rip off drug dealers that they thought lived there. When the defendant and his friend got back to the car, the friend told the driver to drive to a nearby park. Without a word, the friend shot the driver and the other two men in the car. One of the three survived by pretending to be dead and later identified the defendant’s friend as the shooter. The defendant told police he knew of the drug rip off, but did not know that his friend planned to shoot anyone and stated that the friend “just snapped.” The defendant and his friend were ultimately convicted of first-degree murder and both were sentenced to life in prison.

At the time of their conviction, Massachusetts judges were required to sentence defendants as young as fourteen to life in prison with no possibility of parole if they were convicted of first degree murder. Given the state of the law, the defendant went to prison with no reasonable hope that he would ever get out. Despite that fact, he signed up and participated in every educational and therapeutic program available to him. He also found a way to avoid any trouble or disciplinary tickets, which are issued for any failure to follow prison rules and regulations, including such minor infractions as taking too long in the shower. Prison life is extremely difficult and often violent – so much so that it is almost impossible for young prisoners to avoid conflict and thereby receive at least some sort of disciplinary citation. the defendant, however, managed to do so.

This past December, Massachusetts became the first state in the country to declare life without the possibility of parole sentences unconstitutional for juveniles. Specifically, in 2012, the United States Supreme Court ruled in Miller v. Alabama that it was unconstitutional to sentence defendants to life sentences without parole for crimes they committed as juveniles. The Court’s decisions was based largely on the growing scientific evidence that young brains are not as equipped as adult brains to control violent impulses and understand the consequences of rash behavior. The Miller decision led the Supreme Judicial Court to issue a similar ruling in December of 2013: Diatchenko v. District Attorney for the Suffolk District. The Diatchenko decision held that Massachusetts law imposing a mandatory life sentence without the possibility of parole for juveniles violated both the 8th Amendment prohibition on cruel and unusual punishment, and the analogous provision of the Massachusetts Declaration of Rights set forth in Article 26. Continue reading →

Published on: June 14, 2014

SJC Strikes Down Lifetime Community Parole for Sex Offenders

By Daniel Cappetta

Up until this week, Massachusetts law allowed for the imposition of community lifetime parole (CPSL) under G. L. c. 127 § 133D. CPSL is intensive parole supervision by the parole board. It may only be imposed after a defendant is convicted of a sex offense. A CPSL sentence begins after a defendant has completed a committed or probationary sentence on the underlying criminal offense, and lasts for life. While on CPSL, a defendant is subject to a set of mandatory conditions, as well as various other conditions, that may imposed at the discretion of the parole board. If a defendant violates a condition of CPSL, the parole board is required to send him back to jail – for 30 days for the first violation, 180 days for the second violation, and 1 year for every violation after that.

This past week, however, in Commonwealth v. Cole, the Supreme Judicial Court determined that the statute authorizing CPSL is unconstitutional because it violates the separation of powers doctrine. In Cole, the defendant pled guilty to a sex offense and was classified as a level 2 sex offender. He was required to register with the Sex Offender Registry Board (SORB), and provide SORB with notice of any change of address. The defendant failed to notify SORB that he had moved from Brockton to Taunton and was charged with failure to register. He pled guilty and was sentenced six months probation and CPSL. The defendant completed his probationary term and began his CPSL sentence. Once his CPSL sentence was imposed, the defendant filed a motion to correct his sentence on the ground that he should not have been sentenced to CPSL for several reasons, including the fact that CPSL is unconstitutional under the separation of powers doctrine.

In its decision, the SJC noted that even though CPSL is referred to as “parole,” it is much more similar to probation. Specifically, when a person is on parole, the parole board has the authority to release a person from his committed sentence if the board finds that that person will live and remain at liberty without violating the law and the release is not incompatible with public safety. The board can establish and enforce conditions of parole. If a person violates those conditions, the board has the authority to send him back to jail, but only for the remainder of the original committed sentence – for example, if the person was sentenced to 2 years in prison, was paroled after 1 year, and violated a condition of parole, the board could only send him back to jail for the remaining year left on the sentence – the board does not have the ability to extend the original term of incarceration, and therefore could not order the person to be serve anything beyond the original 2 years. In contrast, with CPSL, the board does have the authority to send a person back to jail for longer than the original sentence, thereby increasing the term of imprisonment and ordering additional incarceration above and beyond what the court originally ordered – as stated above, 30 additional days for the first violation, 180 additional days for the second violation, and an additional year for every violation after that.

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Published on: June 2, 2014

Framingham Man Arrested for Assault and Battery with a Dangerous Weapon

By Daniel Cappetta

According to an article in the MetroWest Daily News, a 24 year-old man from Framingham, was involved in an altercation with another man this past week. The article states that the defendant and the other man were assaulting each other. During the incident, the defendant allegedly picked up a rock and hit the other man with it. It is unclear what the two were fighting about, but both the defendant and the other man appear to have been injured in the fight; the article states that the other man had a bump on his head, and includes a picture of the defendant with a significant laceration along the right side of his face. The article does not state how the police became involved, but does indicate that when they arrived, they only arrested the defendant for his involvement in the fight. The defendant was ultimately charged with assault and battery with a dangerous weapon.

Despite the fact that the other man had some injuries, the defendant appears to have a strong argument that he was merely defending himself. To establish a claim of self-defense, the defendant would have to offer some evidence that he had a reasonable belief that his physical safety was in immediate danger – specifically he would have to show that he reasonably believed that he was being attacked, or was immediately about to be attacked. Given the fact that the defendant and the other man were fighting each other, it seems likely that the defendant will be able to establish that he reasonably believed that his physical safety was in danger. Continue reading →

Published on: June 2, 2014

Shrewsbury Man Charged With Assaulting Former Co-worker

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Shrewsbury, MA man threatened a McDonald’s employee earlier this week. The man was apparently a former employee of the McDonald’s, and went into the restaurant looking for the alleged victim with a crow bar in his hand. When the man saw the alleged victim, he reportedly attempted to go after him, however, two other employees blocked the man’s path before he was able to get to the alleged victim. The man then reportedly told the alleged victim that he would shoot him. After someone said that they were calling the police, the man left. When the police arrived, they spoke to the alleged victim who reported that he and the man used to be friends, but that their two respective girlfriends had “issues” that led the man and the alleged victim to be “enemies.” The police also spoke to the man, who acknowledged that he had tried to go after the alleged victim with the crow bar, and that he had threatened to shoot him, but explained that he had only done so because he owed the alleged victim money and was afraid that the alleged victim was going to physically harm him. The man was ultimately charged with: (1) assault and battery with a dangerous weapon; (2) threats to commit a crime; (3) and disorderly conduct. Of the three charges, assault and battery with a dangerous weapon is the most serious, as it is a felony and carries a significant potential jail sentence (up to two and a half years in the house of correction). Threats to commit a crime and disorderly conduct are both misdemeanors – threats carries a maximum penalty of six months in the house of correction and disorderly conduct carries only a fine. Continue reading →

Published on: May 27, 2014

Aaron Hernandez Facing New Murder Charges

By Daniel Cappetta

According to an article in the MetroWest Daily News, former New England Patriot Aaron Hernandez is facing new murder charges out of Suffolk County. Hernandez is already accused of murdering a man (Odin Lloyd) last year, and has pending murder charges in Plymouth County. The new charges stem from an incident that happened outside a nightclub in Boston’s South End in 2012, prior to the Plymouth County murder. The article states that on July 16, 2012, Hernandez allegedly got into a disagreement with two men in the nightclub – Daniel de Abreau and Safiro Furtado. Both men were later shot to death while they sat in a car outside the club. The shooter reportedly drove up in an SUV with Rhode Island plates, pulled alongside the victims’ car, and opened fire. According to a third individual who was in the car with the victims, the gunshots were fired from the rear passenger seat of the SUV.

Hernandez was reportedly seen on surveillance footage in the nightclub on the evening of the shooting, and the SUV reportedly used in the shooting was found at Hernandez’s uncle’s home in Bristol, Connecticut months after the incident took place. The SUV was dusty and had a dead battery, which led police to speculate that the vehicle had not been used for a significant period of time. Continue reading →

Published on: May 22, 2014

SJC Rules that Raise the Age Legislation is Not Retroactive

By Daniel Cappetta

This past Tuesday, the Supreme Judicial Court issued a decision in Commonwealth v. Watts. The decision held that the Raise the Age legislation, which raised the age of defendants who could be charged in adult court from seventeen to eighteen, is not retroactive, and therefore does not apply to cases that were pending at the time the law was enacted on September 18, 2013.

The Watts decision addressed two cases involving seventeen year old defendants that were charged prior to the enactment of the Raise the Age legislation, but whose cases were pending at the time the law was passed. After the passage of the law, both of the defendants moved to dismiss the charges against them on the ground that the District Court no longer had jurisdiction over them because they were seventeen years of age at the time the alleged offenses occurred and when the criminal proceedings began. The respective trial court judges denied the motions and both of the defendants filed for further appellate review.

In making its decision, the SJC noted that, under G. L. c. 4, § 6 and other applicable case law, a newly enacted statute is presumptively prospective – meaning that it only applies to charges brought after the enactment of the statute. There are only two exceptions to this rule – where solely prospective application would: (1) be inconsistent with the “manifest intent” of the legislature; or (2) be “repugnant to the context of the same statute.”

As to the first exception, the presumption of prospective application is inconsistent with the manifest intent of the legislature if the legislature includes a clearly expressed intent for the statute to apply retroactively. The SJC found, however, that there was no such clearly expressed intent in the Raise the Age legislation. The Court pointed to the language of the legislation, which states both that “no criminal proceeding shall be begun against any person who prior to his eighteenth birthday commits an offense against the laws of the commonwealth . . . without first proceeding against him as a delinquent child,” and that the legislation “shall take effect upon its passage” (September 18, 2013).

The Court stated that, when the provisions were read together, the act provides that on and after the act’s passage on September 18, 2013, criminal proceedings may not be begun in the Superior Court or in the District Court against juveniles who were seventeen years of age at the time of the alleged offense. Therefore, the act only protects juveniles who are seventeen years of age and who are charged with committing a crime on or after September 18, 2013, and juveniles who were seventeen years of age at the time of an alleged offense committed before September 18, 2013, but who had not been charged until on or after September 18, 2013.

The Court found that there was no language in the Raise the Age legislation that indicated that it should be applied retroactively to cases involving juveniles who were seventeen years of age at the time of the alleged offense and whose criminal cases in the Superior or District Court were pending on September 18, 2013. Continue reading →

Published on: May 6, 2014

Man Arrested in Framingham for Illegal Entry and Drug Charges

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man attempted to enter a Framingham apartment located at 12 Richardson Circle in the early hours of Saturday morning. A resident reportedly called the police and alleged that someone had broken into his home. The resident stated that he noticed that a man had opened the door to the apartment and was starting to enter. The resident stated that he was scared, but was able to force the door shut and then called the police. When the police arrived, they found the man in the mudroom and arrested him. During the course of the arrest, the officers searched the man and located several bags of marijuana hidden in his sock. The man was subsequently charged with (1) entering without breaking in the nighttime, owner put in fear, under G. L. c. 266, § 17; and (2) possession of marijuana with the intent to distribute, under G. L. c. 94C, § 32C.

To prove that the man is guilty of entering without breaking, the Commonwealth would have to show beyond a reasonable doubt that he entered a building, and put the owner (or in this case, resident) of the building in fear. Entry is defined as the unlawful making of one’s way into a building. Entry occurs if any part of the defendant’s body – even a hand or a foot – physically enters the building. To prove that the man is guilty of possession with intent to distribute marijuana, the Commonwealth would have to prove beyond a reasonable doubt that the substance that was found is in fact marijuana, that the man possessed the substance, that he had the intent to distribute it to another person, and that he did so knowingly or intentionally.

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Published on: April 25, 2014

Man Arrested in Hopkinton for Indecent Assault and Battery

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Pennsylvania man who came to Massachusetts to buy a home has been arrested and charged with indecent assault and battery on a person over fourteen. The article states that the man went to an open house at a home in Hopkinton. Upon arrival, he approached the real estate agent, told her she was beautiful, and began to kiss her hand. He then reportedly touched her hair and kissed her face and neck. The agent does not appear to have protested or said no. The Commonwealth alleges that this is because she was scared, did not want to make a scene, and did not want to worry other people that were in the home for the open house. According to the defendant, who made a statement to the police, the agent was flirting with him and was a willing participant. After the encounter, the defendant left the house and the real estate agent called the police, who later arrested him.

For the Commonwealth to prove that the defendant committed an indecent assault and battery on a person over the age of fourteen under G. L. c. 265, § 13H, the prosecution must establish that: (1) the agent was at least fourteen years old at the time of the alleged incident; (2) the defendant committed an assault and battery on the agent (assault and battery is essentially the intentional touching of another person, without some legal justification or excuse); (3) the assault and battery was “indecent,” (an indecent act is one that is fundamentally offensive to contemporary standards of decency – an assault and battery may be considered indecent if it involves touching portions of the anatomy commonly thought to be private, such as the person’s genital area or buttocks, or the breasts of a female); and (4) the agent did not consent to the touching.

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